Well, back when the first part of Card's article on copyright was posted I found myself to be rather unimpressed by what he had written. My posting regarding that can be found here.
This part is somewhat better. I agree with his position that it's rather weird to pursue music fans for music piracy and that the increasingly hostile efforts of copyright holders are going to result in a backlash.
Nevertheless his proposals for reform are laughable.
When a corporation is listed as the "author" of a copyrighted work, then what does lifetime-plus-twenty or lifetime-plus-fifty really mean? Whose lifetime?
Well, when a corporation is listed as the author of a work, this only ever happens in the case of works for hire. Assignments of copyright don't change the authorship. The funny thing is, the law is awfully clear in 17 USC 302(c), that the term for works for hire are NOT based on the life of the author, it is a flat "95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first."
This is awfully easy stuff -- if he's looked at copyrights he shouldn't be screwing this up.
And extending copyright to ludicrous lengths of time is against the public interest.
I totally agree with this. One hundred percent.
Twenty years after the author's death or the author's hundredth birthday, whichever comes last -- that's a workable standard to provide for the author and his or her immediate heirs.
Sadly, Card is merely reducing an insanely ludicrous length that we have now, to a mere ludicrous length. It's still ludicrous, though.
Copyright isn't intended to provide for authors and especially not to provide for their heirs. Which, incidentally, copyright is very BAD at doing, since few authors make enough money, or for enough time, to ever support themselves or their heirs. Many creative works have no economic value and most have no economic value after a short period of time. Card is making the mistake of thinking that his experiences as a successful author are anything at all other than atypical.
If Card wants authors to make money, he should encourage them to go out and get jobs. If Card wants authors' heirs to be provided for, he should support social welfare systems. What Card cannot do is he cannot force people to buy books, which is the basically the way that an author makes money from his copyrights, and while he wants to make up for that by making terms last for a long time, that still won't make people buy books.
Like it or not, most authors do not make money by dint of being authors. Art is not a lucrative pursuit for the vast majority of artists. Some artists are lucky, but that alone shouldn't dictate our policy.
And let's eliminate this nonsense about corporate authorship.
Here, Card has a reasonable point at least, though I disagree with him. There's a place for works for hire, first of all, and besides which, I see no rational way of preventing the common practice of copyright assignments anyway, which means that there's really no point. An author might not experience this normally, but how many people might be said to be authors of a movie? It's potentially hundreds of people -- ownership by so many is exactly why we don't have certain forms of commons. It just isn't feasible.
If a corporation claims to be the "author" for copyright purposes, then the whole life of the copyright should be twenty years, period.
I think the whole life of a copyright ought to be twenty years period no matter what. Why stop with only works for hire?
Frankly, I think FIVE years is enough, with some types of creative works (read: not software) being eligible for five year extensions up to a maximum of twenty to twenty-five years. Copyrights should be no longer than necessary; if an author can't be bothered to frequently reassert his de
No, it was long decided that commercial speech wasn't entitled to first amendment protections. Then between the 1940's and the 1970's it was more recently decided that commercial speech was entitled to first amendment protections, but that some degree of limitations could be placed upon it, roughly similar to the limits that are placed on noncommercial speech.
Look for the still-applicable Central Hudson case decided by the Supreme Court in 1980 IIRC. It'll get into the details.
How so? If someone on the other end is talking, isn't that speech? And doesn't the first amendment plainly state that there shall be no law abridging the freedom of speech?
It seems to me that based purely on the plain words here, it is free speech. There very well may be a more nuanced argument, but if you want to make such bold claims as you did above, you're going to have to back them up a little bit.
This is one of the great things about the first amendment. It's so damn straightforward that anyone who wants to limit speech has to do some hard work in order to manage it. Sometimes they do manage, but we never want it to be too easy.
Your right to swing your phone ends at annoying me in my own home without my express permission.
So if your house was on fire, I couldn't call you to wake you up and save your life because I lack your express permission?
If we were carpooling and I needed directions on the way, I couldn't call you to find out where you live so that we could both get to work on time because I lack your express permission?
I'm afraid you've got it backwards my friend.
There is implicit permission inherent in having a phone, or a front door, or a mailbox, or an email address, for people to communicate with you of their own accord. You can reject these things by expressly rejecting that permission, but until you act to do so, it's there.
This is not dissimilar to the concept that while it is unlawful to batter someone (meaning roughly to make any unwanted physical contact) it's perfectly fine to jostle people as a consequence of being in a crowded place, because there are situations where the rules change according to what's typical in society.
So I like the general concept of a do-not-call list because it provides a vehicle for such a rejection, though of course such rejections could be made otherwise without it.
But nevertheless, you'd still have to take that affirmative step to rebut what we assume your position is when you haven't made it clear.
On the other hand, regulations as to the appropriate time of calls are acceptable, provided that they aren't so restrictive that they essentially prevent calls from being successfully made. We can to a degree channel speech, but we can't use those channels to kill it.
(IANAL) Even though Congress AND the House GAVE the FTC the authority to do this, how can a District Court Overrule them? WOuldn't it have to come from the Supreme Court?
Well, actually even a backwater state trial court probably could've overturned or stayed the law. If something is unconstitutional, we don't wait years for the highest court in the land to say so. Any court with jurisdiction can so rule. The S.Ct. might have the final word on the subject, but it's the duty of all courts to interpret law -- and among all the laws, the constitution comes first and always trumps everything else should there be a conflict.
Yes, I do understand that he is complaining about First Admendment rights of the telemarketers, but isn't the telphone system regulated by the FCC?
The FCC (and I think you mean FTC) is not allowed to regulate in a manner that is contrary to the first amendment. How could this possibly be otherwise?
Is there no case law on this situation? It appears that the whole "rights" system can be twisted to anyone's favour.
Well, I don't think we can really call rights a mere system. That said, there is case law on the subject. Personally I think it comes out on the side of the government in the case of at least a properly enacted do-not-call list, but I admit that there is room for people to debate the subject, and that we should always tread very cautiously when there is a hint of limiting the broad guarantee of free speech in the first amendment.
Take the heated debate over the displaying of the Ten Commandments (lookup Justice Ray Moore). It was taken down because it offended some people. But, it made other's proud. Why do those who stand for nothing get their way?
So, in the above example, someone's free speech rights *and* religious rights get trounced.
The funny thing is, the government has no guarantee of free speech, and the government is explicitly forbidden by the highest authority from endorsing religion, which the Ten Commandments in the context of the example above certainly did and were intended to do. So no one's free speech rights or right of free exercise were 'trounced' and by removing the statute, numerous people's right to not suffer an establishment of religion was affirmed.
Alright, now we're talking about a telemarketer's right to free speech. Almost ZERO people want to hear from telemarketers and almost nobody cares about the leeching bastards. Yet time after time their "rights" are being upheld. What gives!?
Well, there's little point in protecting speech that everyone does want to hear. If everyone is for it, it'll surely be heard anyway. Speech that is unpopular, on the other hand, is precisely what the first amendment is intended to protect; as so many people will be against it, such speech would surely be silenced otherwise. It's important that we not allow that to happen.
The thing is, I've never once heard RIAA make that claim. I've heard people ascribe it to them, but I haven't heard RIAA make it, and I think that as much as we like to villanize them aside (and as much as they deserve it) they're not quite that dumb. Well, maybe the upper echelons are that dumb because they are the public face of RIAA, not the brains of the operation. (see e.g. MPAA head Valenti's Boston Strangler comment)
As for iTMS, I can't really comment. I haven't seen it. However, the license would appropriately be Apple's. I honestly don't know whether they have people agree to a license that pertains to this. I do seem to recall someone trying to resell iTMS music OTOH, and it being allowed as far as Apple cared.
As for ProCD, I'm aware of it. However, it's not the end-all be-all of cases on this still unsettled subject. Take a look at the Netscape Smart Download case, and the Gateway case in Kansas. (I think it was Kansas)
Basically it comes down to which of two possible sections of the UCC is applied in looking at a transaction as to whether EULAs are valid or not.
However, the RIAA views buying a CD or tape as licencing the right to play the music, not for the actual media the music comes on, and are pressing for making backup copies (allowed under Fair Use) illegal.
No. You seriously do not know what you're talking about.
When you buy shoes, is there a license -- which is a synonym for contract -- is there a contract saying 'go ahead and use these shoes'? NO THERE FUCKING IS NOT.
The law of personal property tells us that owners of a piece of personal property (basically movable things, as distinguished from land, which is real property) have the right to use it as they see fit.
There may be other constraints imposed by law -- you can't drive your car at 150 mph in a school zone -- but this is totally unrelated to the concept of a license, which implies that someone ELSE owns the thing in question and is letting you rent it more or less.
Here's a good rule of thumb: you own something outright if a change in law would result in your being able to do more, but do not own something outright if a change in law would be ineffective in enlarging your legally exercisable abilities since there's a contract that establishes what you can and can't do.
E.g. you own a car, because if the speed limit goes away, you can drive faster legally. OTOH if you have a contract with someone to show their copy of a painting in your gallery, the fact that there is no law regulating the color of the wall it's hung is irrelevant if the contract specifies that it has to be blue.
Copyright law does not include the use of copyrighted works. It includes, basically, copying, modifying, distributing, publicly performing, and publicly displaying, copyrighted works.
Listening privately to a CD is none of those -- ergo, copyright does not prevent you from doing it.
There potentially could be a license, but this is not likely given, say, the Bobbs-Merrill case, and at any rate if there were, you'd bloody well know there was a license. (which again is merely another word for contract)
Contracts are oral or written. If it's oral, someone would've talked to you about what you can and can't do. If it's written, you probably have a copy -- it has the terms printed on it. Even if the contract were not express, but were implied, there still has to be something giving rise to it; but you can buy a CD in a generic transaction without there being ANY contract aside from here's $20, here's the CD I want, ring it up, goodbye.
So get this through your tiny little skull -- THERE IS NO FUCKING CONTRACT FOR CDS, BOOKS, PICTURES, OR ANY DAMN THING ELSE.
With computer software, at least there is an _attempt_ to claim that it's licensed, per an express written contract. And even THAT is subject to challenge as being a damned dirty lie. CDs don't get anywhere near that.
As for fair use, fair use allows everything and nothing. Basically any kind of copyright infringement (backup copies involve copying, an exclusive right of the copyright holder) MIGHT be a fair use. But whether it actually is depends on the precise circumstances involved, when you look at them and conduct the sort of analysis that's provided in 17 USC 107.
YOU CANNOT MAKE BLANKET STATEMENTS ABOUT WHAT IS OR IS NOT FAIR USE -- IT *ALWAYS* DEPENDS ON THE PRECISE CIRCUMSTANCES INVOLVED. NOTHING IS CATEGORICALLY A FAIR USE OR NOT A FAIR USE. IT DEPENDS.
Besides which, if you want to make backups, read 17 USC 1008, BUT, AND THIS IS VERY IMPORTANT, BUT REMEMBER THAT THE TERMINOLOGY USED IN THAT SECTION IS DEFINED IN 17 USC 101, & 1001, AND THAT WHAT IT LOOKS LIKE IT SAYS IS NOT WHAT IT REALLY SAYS IN LIGHT OF THE SPECIAL DEFINITIONS PROVIDED.
So mp3 backups may be a fair use, but they could just as easily not be. Backups of _certain_ CDs to _certain_ CDRs may or may not be a fair use either, but they have a specific sort of exemption that's applicable and which might be more convenient. Though you can't cut corners with 1008 -- you have to do things PRECISELY as the law requires, part of which will mandate that you read all of the applicable law so you'll know what that is.
Intellectual Property law needs to be revisited and some consistency brought to it.
Hell no it does not.
Look, there's honestly no such thing as IP law. It's just a name, but it aggregates a number of diverse bodies of law together under the same roof as it were. Even if they have nothing to do with one another.
For example, the reasons for having copyrights and trademarks are totally different. At the federal level, they're founded in different powers granted to Congress. They behave differently because they're intended to achieve different goals. (and incidentally you don't know what the law is, so your examples given are often backwards)
It would be an amazingly stupid idea to decide that they're all the same basic sorts of things and reform them accordingly. Hell, I don't know how you'd ever work out term limits as an across-the-board standard, but I guarantee whatever you did, it would be bad.
Better to look at copyrights, patents, trademarks, trade secrets, publicity rights, etc. seperately, and reform each one standing alone, where needed.
Well, let's discuss Destination now. I think there are a few problems with the case.
Firstly, the court here never explores the issue of whether the government has a substantial interest in preventing cost shifting, and how much cost shifting it takes to trigger this interest.
Note that it's right of the court to not have explored this issue, because it was conceeded in Destination by the defendant, and courts generally should not make decisions any broader than they need to in order to resolve the case.
Nevertheless, the quote from Bolger (which is binding on the Destination court) certainly indicates that there is a level of harm, perhaps of cost shifting, that the recipient of spam can bear without it being a substantial government interest worthy of regulation under the Central Hudson analysis.
Thus there is certainly the possibility that spam* doesn't cause a sufficient harm to warrant regulation of it.
This is compounded by the statement the court here makes. "The possibility of future technological advances allowing simultaneous transmission and eliminating the need for paper does not alter this conclusion. We look at the problem as it existed when Congress enacted the statute, rather than speculate upon what solutions may turn up in the future."
Well it is the future now, and while we don't have flying cars, we do have spam that doesn't consume paper. The Destination court punted on this question, but it'll have to be answered now.
Secondly, I think the Destination court makes a small error when they say "[t]he First Amendment does not require Congress to forgo addressing the problem at all unless it completely eliminates cost shifting." While that's true enough, the requirement of Central Hudson (detractors of Central Hudson might want to note that Destination is relying on it) is that regulations be effective, though no more expansive than necessary to act upon the government interest asserted.
If a general law against spam is enacted, on the basis of cost shifting, but large volumes of spam continue to be sent from abroad, the regulation rather clearly would not have worked. Again, while it needn't stop all spam, it must stop most spam. If I had to grope for a number, I'd imagine around 75% or more. If it can't do this, it's not a well tailored law since it's not doing what it's meant to.
There's also probably an interesting equal protection argument to be made with regards to the whole spam issue. The court here alludes to it, though defendants waived it, but I'd be interested to know what they said. Given some time to think about it I could probably reconstruct it.
*N.B. that throughout I am only claiming that spam which is not deceptive or fraudulent, and which does not relate to unlawful activities, and which has not been rejected by the recipient in a manner the spammer actually knows of or reasonably should know of, is eligible for protection under the first amendment.
This means that since we have laws against such communications generally ALREADY, only a very small amount of spam remains. That is, general anti-spam laws must be interpreted in terms of their application to spam that isn't already illegal for some reason other than it just being spam. This is because a canon of statutory interpretation is that there are no redundant laws, and if laws might be redundant, they should be interpreted in such a way so that they're not.
I suspect that few people here can honestly claim that they're being significantly harmed by honest spam with spammers who will honor requests to go away. Furthermore, how harmful are such spammers capable of being if you _can_ just tell them to go away and they do.
Well, it took a little bit of googling but here we go.
The post where you and I had been talking, and you provided some cites is likely this one.
My reply to that post (which I believe you mischaracterize as being giberish -- readers are free to decide for themselves of course) is here.
To get your most recent posting out of the way:
as you're an idiot that can't be reasoned with
Well, I don't think so. And I have a surprisingly relevant example given this discussion. About a year ago I was engaged in a similar discussion. My position had been that, bans on spam aside, I would desire regulation requiring headers on advertisements merely denoting them for what they were. (so that I could filter them with less work) Long story short, by the end of the discussion I was convinced that I was probably wrong as far as whether this could withstand scrutiny, or was frankly even desirable (though my loathing of ads has certainly not abated).
So I'm fairly open to good arguments. Problem is that most of the people complaining about spam keep reciting the same old arguments that I've looked at and not been convinced by. A new and superior argument OTOH has every chance of gaining me as an adherent. And I love a good argument, so I'm certainly up for that.
claims he understands the law all the while proving that you understand it even less than I do
I have _an_ understanding of the law. I didn't say that it was invariably correct, though I think I've got this one reasonably well pinned-down. Could be I'm wrong. I've been wrong enough times before, so it wouldn't surprise me. But I want to be shown, not merely told.
(Or pretending to go to law school, as I suspect is your situation.)
Nope. I'm posting from school at the moment. 'Cos I have a godawfully late class on estates that'll keep me here until 9. But this is my last semester, as taking summer classes has gotten me enough credits to get the hell out and take the bar in Feb.
But when I see you post nonsense, I'll continue to point it out, so that you will have more trouble lying to other people.
Well, I'm not lying; I'm calling it as I see it. I may be mistaken, but I have no intention of decieving people. If there's a mistake, it's an honest one.
Now then, perhaps I did you a disservice with regards to the numerous cites that you posted way back in April. So, I will now attempt to address each individually. N.b. that I've got class in half an hour so I might need to post only some now, and get back to the others later tonight.
1. AOL, Rowan, Frisby I agree with these cases. No one can force someone to accept spam; nevertheless, neither stands for the proposition that spam can be banned generally. Nor do they say that spammers do not have a right to send spam where recipients have not asserted their superior right to not be subjected to it. I have no problem with users or ISPs rejecting spam, though I think that it's not necessarily good for ISPs to be doing it of their own accord, particularly given their desire to be seen as common carriers.
2. Earthlink The press release isn't helpful. There aren't any details and it's merely for preliminary injunctive relief; it's not a permanent injunction. Couldn't find any further details rapidly with Google or Lexis, so I can't say much about it (other than surprise that people would cite a state trial court).
3. Destination This looks to require more attention than I have until later tonight; I'll get back to this one though, count on it.
4. Turner You pointed out that you couldn't find this case. Sporkin is now retired from the bench, but had been serving in the DDC. This figures really, as it's where you'd expect cases against the federal government to get filed.
Maybe we should start requiring it. It would be not dissimilar to the best edition requirement for deposit, or the best mode requirement for patent disclosures.
Which is equivalent to saying that you're discriminating against a particular type of speech and the method by which it can be disseminated, merely because you don't like the _content_.
Content is a difficult thing to discriminate against in the first amendment arena.
If you don't like email for spam, surely the only position you could take that would be content-neutral is to not like email at all. But I don't think that would work -- or be a good position to adopt -- anyway.
Besides which, email is a very useful medium for speech. I guarantee you it would be unconstitutional for us to decide that all commercial speech has to be written on single grains of rice and shipped to people, since the intent of regulations (such as that, or such as banning spam in favor of junk mail) banning mere pervasiveness is to cause there to be less speech generally. It will chill the advertisements made in spam if they can only be made in more expensive ways. Commercial speech is hardier to chilling than most speech, but it only goes so far.
The problem is that 1) it's extremely paternalistic and intrusive of government to do so, 2) there is a first amendment right to listen which would be harmed by the government so regulating in the case of persons who do not affirmatively ask for ads but nevertheless are ameniable to ads, 3) it still violates spammers first amendment right to send spam to persons who have not affirmatively asked for them but have not affirmatively rejected them either.
The fact that you don't have a problem with it doesn't make it constitutional.
As for me, I hate ads. I'd be happy if I never perceived an ad for the rest of my life save for the rare instance of directly asking for one (e.g. a price quote).
Oh, I'm not a psuedo-lawyer. I'm not any kind of lawyer. I'm a non-lawyer with an interest in the law. I'd very much like to be a lawyer someday. (where someday is basically next spring)
As for your court rulings here, I at least recognize the latter, but it would really help a LOT if you'd cite the damn things. And I'm afraid that I'm really awful with remembering people (which is complicated by/. only using handles) so if you could perhaps slide over to the thread here perhaps we can all have a lively discussion with cites.
Oh, and incidentally, I don't believe that any of my arguments against certain regulations of spam have ever contradicted the position that people have a right to compel us to "listen to or view any unwanted communication."
This is because no matter how much spam a spammer sends, he has no right to force you to read or receive it. That doesn't mean he can't send it and hope that you volitionally listen to or view it. Heck, maybe you'll even not find it unwanted.
Do you see -- for ONCE -- the difference between sending something, and compelling the receipt of something?
At least the Court did in the text that you quoted: "The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."
Look. I hate advertising regardless of pervasiveness. I'm sitting at a computer in a public lab at school. The monitor has a sticker indicating that it's school property, and a badge indicating the manufacturer of the monitor. I hate both one kilosol. (i.e. with the passion of a thousand burning suns)
Nevertheless, I don't think that the mere fact that there is a LOT of advertising is a sufficient reason to ban it given the first amendment. That you're subjected to advertising is not a recognized harm. Nor is the fact that you're objected to any merely objectionable speech.
If advertising, due MERELY to its pervasiveness, and NOT its content (since you're not arguing that), were rose to the level of harm that can be seen from a threat (E.g. Cross burning illegal where done with the intent to intimidate, not illegal where there is no such intent, intent cannot be presumed merely from the fact of the burning, Virginia v. Black), THEN you might have something going. If someone were harassing you by sending you spam with such an intent, or a volume that's simply ridiculous even for spam, that might be something.
As it stands, spam is merely annoying. It is simply not harmful to you to have to have to 1) put up with it, 2) filter it (which isn't hard and can be done by ISPs upstream even), 3) or simply delete it from your inbox.
I think it is AMAZINGLY disingenious as well as very distasteful to seriously claim that the harm suffered by children as a result of their involvement in child pornography is akin to the harm suffered by you as a result of getting spam. They are in two totally different leagues, man.
Well, I of course never claimed that it was insightful. In fact personally, I find the moderation system and user account requirements rather distasteful. And the prior response to your comment smacks of ebay, which kind of shores up my feelings on that subject, but I digress.
Anyway, the basic problem with your argument is that your chronology is one of greater protection afforded to commercial speech as time goes by. It utterly disproves your position. Indeed, the large quotation at the end which you saw fit to include itself contradicts your position (though it too is flawed) by asserting that there was an increase in protection in 1976.
The Court provides us with a nice history of the pre-1976 state of the law at Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council 425 U.S. 748, 758-61. It points out that while the hoary claim of no protection for commercial speech might have worked in Valentine v. Chrestensen, 316 U.S. 52 (1942), or even as late as Breard v. Alexandria, 341 U.S. 662 (1951), it basically had ceased to function as an absolute claim by the Virginia Pharmacy Bd. case about a quarter-century later.
The core of the Virginia Pharmacy Bd. argument then is at 761-62, stating that "[i]f there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject."
Even "speech which does no more than propose a commercial transaction,... is so removed from any exposition of ideas,... and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government," does not lack all protection.
Now, the Court did not go so far as to say that commercial speech was on par with other speech which does receive full protection, but it was at this point making a strong statement that commercial speech did deserve some level of protection under the first amendment. Thus, the trend of increased protection dating back to the 1940's and 50's ("[The assertion made in Breard had] by then come under criticism or was regarded as of doubtful validity by Members of the Court") just kept on increasing.
This means that your claims, muddled as they are given the quoted portion, are already halfway shot down -- you did say that the decisions had gotten worse for commercial speech (which increase in severity with chronology) between Chrestensen and Virginia Pharmacy Bd., but the Court says the exact opposite itself!
Of course, moving on, we get to the well-known Central Hudson case (Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980)). Central Hudson endorses the Virgina Pharmacy Bd. case. It reaffirms that there is a "commonsense distinction" between purely commercial speech and other speech, but nevertheless points out that commercial speech, while subject to greater regulation than other speech, is nevertheless protected to an extent by the first amendment.
What are the limits permitted in Central Hudson and Virginia Pharmacy Bd.?
That the state can impose time/place/manner restrictions on speech. Of course, this is a well-known restriction applicable to all protected speech. Commercial speech is not subjected to any special burden.
That the state can regulate commercial speech that is deceptive. This runs parallel with restrictions on all speech with regard to any fraud, libel or slander. This restriction is roughly equivalent with restrictions on noncommercial speech. This does diverge noticably only in the requirement that additional disclosures, standardized layouts, etc. may be needed to prevent deceptiveness.
That the state can regulate commercial speech related to illegal activity. But this surely is near to, if a little more restrictive than, the limit applied evenhandedly in Brandenburg v. Ohio, 395 U.S. 444 (1969).
Sigh. Okay, I'm detecting a common mistake in several people's arguments at this point.
If solicitors had a right to come onto private property to solicit, this would mean that they could defend this right against attempts by government to prevent them from doing so. E.g. they could sue the police, if the police came to get them to leave the property, since they had a right to be there.
The mere fact that someone does not have a right to come onto private property to solicit does NOT mean that they do not have the _ability_ to lawfully come onto private property to solicit.
And generally, we make a rebuttable presumption (i.e. we presume unless shown otherwise) that people permit solicitation. So even though it would qualify as trespassing for the Fuller Brush man to go from the sidewalk to your door to try to get you to buy brushes, we assume you permitted him to do so, because our society is generally permissive of communication.
If he tried at an unusual hour, or by sneaking around the back, that probably wouldn't work for him. The implicit permission is fuzzy but nevertheless limited.
And if you want to rebut it, this can be accomplished by providing actual notice to the solicitor to go away, or by providing constructive notice that a reasonable solicitor ought to have become aware of even if a particular solicitor is not (though they likely will be) such as a properly placed sign.
The FTC Do Not Call List is more or less a sign for people's phones, though perhaps it's still susceptable to arguments of government infringement. I think it's probably okay though.
At any rate, the government really cannot bar solicitation generally -- at most in this case they can but back up a property owner's request to not be solicited to. After all, some people might want to be solicited to though they didn't opt in, and at any rate, would you even know to opt in if the solicitor couldn't communicate with you?
Incidentally, your mailbox is private property, but it's of the type with a strong presumption that it's okay to receive more or less anything there. People don't have a right to force others to receive mail, but unless you do something to prevent it, in practice you're going to.
I think the best that can be hoped for is for government to provide a cause of action against:
* Spam that's fraudulent in some way (e.g. false claims within, false header, false return address for opt out, doesn't actually opt out, etc.)
* Spam sent despite an actual or constructive opt out
* Spam that constitutes harassment (e.g. hundreds of roughly identical spams from the same source)
Which ought to cover a lot, though there is a problem of spam originating outside the US and unrelated to the US in any way other than that that's where the recipient lives.
But I don't see a reason for government to ban spam that is entirely truthful, that isn't sent so much as to harass (small amounts are not harassing -- annoying, but not harassing), and where the spammer respects people's opting out. At least, not given that private people could cope with _that_ sort of spam easily on their own _by_ opting out. Plus it's just not that common at the moment.
I believe you misread what I was saying. I never said spammers had a right to use your property to speak on. OTOH that doesn't mean that spammers don't have a right to speak, nor that they can be prevented by the government sua sponte from using your property to speak on.
Mmm... I don't know if that goes against the assumption -- I think that you just ran into someone who was ignoring your wishes and ought to be subject to liabilities for it if you were to pursue it. I wouldn't object to it; they were told, or knew they were being told, which is sufficient.
I don't think that pervasiveness is relevant. Perhaps you could make an argument against a particular spammer for harassment (though spam is still pretty easy to delete or filter compared to real world equivalents) but that's not an argument against all spammers, some of whom may not engage in such behavior generally or against a particular person.
As for the benefits of spam, there are some, and at any rate, since when did speech have to be beneficial in order to be protected? People are free to rail about utter crap all the time -- but it's good that we let them.
the only law that really counts IMHO (the Constitution) provides protection for free speech, not commercial speech
Well, there is of course a California constitution. I'm not very familiar with the constitutional law of California, but it's certainly possible that Art. I, Sec. 2 might be applicable -- mere unsolicited email may not mean abuse.
As for the somewhat more important federal constitution, it affords protection to very nearly all speech. Obscenity, fraud, libel, and slander are the traditional areas of exclusion.
Commercial speech is protected. Where it differs from non-commercial speech ('free speech' isn't really a useful thing to say in this context) is that it's generally accepted to require additional disclosures to be made, whereas most people are protected from having to assert a belief. (See e.g. Barnette)
But the line of cases involving commercial speech makes VERY plain that it is protected speech, and these days is very nearly protected as much as non-commercial speech.
Of course, ANY speech may potentially be regulated sans an amendment to the constitution. There are various analyses that go into whether or not it's permissible in a given case. See, e.g. Brandenburg, New York Times, Black, O'Brien, etc.
And of course, even the vaunted FTC is limited as to how far it can regulate commercial speech -- it only enjoys as much power as Congress could give it. What Congress is forbidden to do, the FTC is forbidden to do as well.
Commerical endeavors have always suffered more restrictions than non-commercial ones.
Yeah, but this has been significantly eroding for several decades. At this point there are very few restrictions unique to commercial speech.
Witness the anti-telemarketing Do Not Call registries that apply to commercial interests but not non-profits or politicians.
I suspect that that application has nothing to do with the issue of commercial speech per se. The list is promulgated by the FTC. They're not empowered to regulate persons not engaged in trade.
I mention this simply because spammers will say they have a first amendment right to annoy you because a form of 'speech' is involved, which is bullshit, kinda like how I don't have a first amendment right to stand on your lawn yelling advertisements with a loudspeaker 24/7, even though speech is involved. The first amendment doesn't mean anything is legal so long as some form of speech is in the mix. Spam is illegitimate, unprotected speech--much like kiddie porn and threats of violence.
Yeah, the problem is that this particular law goes too far and does in fact run afoul of the first amendment.
Spammers do not have a right to spam despite the wishes of the recipient, that's true. But where the recipient of any commercial solicitation at the home (by email, phone, door-to-door, etc) hasn't expressed a preference, we generally assume that it is permitted. If the recipient doesn't want it he can appraise the solicitor of that fact directly, or through a sort of preemptive notice (e.g. by putting up a sign).
This law violates a) spammers' right to free speech where the recipient hasn't expressed a desire to not get spam, and b) recipients' right to receive unsolicited spam if they desire to do so.
The latter I think is extremely important; imagine if such a ban were placed on political speech. You couldn't tell someone your political views unless they invited you to, and you might have difficulty even relating that you wanted to discuss politics with them if they hadn't given you permission yet. Listeners would be harmed by not receiving as much information as was available up to at least the limit they're willint to listen to it, AND likely not even knowing it's out there for them.
Hopefully this law will be overturned.
I think there are better ways to deal with spam than this.
You are missing his point, since its clear you have never dealt with book publishers in the last 20 years.
Actually, I have, but not as an author.
101 of the 1976 Copyright Act defines WfH, and the european equivalent was made to match the US, despite no mention of Work-for-Hire in the Berne Convention. WfH was left out of Berne, because all authors thought it a bad idea, and addressed under the section on Moral Rights. Berne did not go far enough and specifically state that WfH should be outlawed in national copyright laws, because the US had already had it for almost 70 years.
First off, I hate the Berne Convention. I think copyright laws are best when they best serve the purposes of the nation that enacts them. Harmonization is bullshit -- it doesn't serve the public in any way whatsoever, and I frankly do not believe that it provides an incentive to authors that could possibly make up for the awful harms it causes. I completely believe that the US should pull itself out of all international copyright treaties, and just do what is best for us. The Senate had the right idea during the roughly hundred years that it refused to tolerate the Berne Convention. It was a huge mistake to agree to it.
Secondly, I don't really care what authors think is a good idea. I care about what best serves the public interest. These may or may not be in harmony with one another.
I really don't have a problem with employee works within the scope of employment being works for hire. Just the other day I was involved in a discussion of patent law, and I proposed that (this was in a discussion of the best mode requirement) employers should be considered to be inventors for inventions created by their employees in the scope of their employment.
Given the common practice of requiring employees and contractors to assign their rights anyway, it would merely make things clearer, and in that context at least, fix up the issue of disclosure of the best mode known to the inventor.
If we did not have works for hire, may I ask you whether a) you think assignments wouldn't still exist and more or less end with the same result, and b) what you would classify something like a movie as, given the number of people who helped author it? A joint work with hundreds of co-authors? That's impractical for the same reason that we don't have commons.
As for moral rights, they're bullshit. There's no public purpose that's served by them, and there are numerous public harms. We need to get rid of 106A, and then make sure that such non-utilitarian doctrines never darken our shores again.
Most large publishers require authors to sign an agreement declaring their work was really done as a Hired Work, and forfeit all associated rights. Don't want to sign their contract? Then go find a different publisher.
Mm. Well, I would imagine that the contract actually does two things, though I'd appreciate it if you could post the relevant language so we can all have a look.
First, it probably makes the claim that it's a work for hire under the two definitions in 17 USC 101. But because this is not amazingly difficult to challenge in court -- since a mere claim of employment doesn't necessarily make it so, and courts will look at the actual circumstances -- there is secondly probably an assignment clause as well, to cover the publisher's ass.
Anyway, what's the problem with this? It would be a bad idea to compel publishers to do business with authors on terms that were not mutually agreed upon. Same goes for most business relationships: employees frequently have to sign non-competes, non-disclosures, assignments, etc.
If you don't like it, I encourage you to start up your own publishing house, to self-publish, or to go to a vanity press.
I just don't see the problem.
I've written a couple of books, the last has not (yet) been published because I spent several years of my time putting all my creativity and ideas into it and I refuse to g
Slashdot Mirror
Well, back when the first part of Card's article on copyright was posted I found myself to be rather unimpressed by what he had written. My posting regarding that can be found here.
This part is somewhat better. I agree with his position that it's rather weird to pursue music fans for music piracy and that the increasingly hostile efforts of copyright holders are going to result in a backlash.
Nevertheless his proposals for reform are laughable.
When a corporation is listed as the "author" of a copyrighted work, then what does lifetime-plus-twenty or lifetime-plus-fifty really mean? Whose lifetime?
Well, when a corporation is listed as the author of a work, this only ever happens in the case of works for hire. Assignments of copyright don't change the authorship. The funny thing is, the law is awfully clear in 17 USC 302(c), that the term for works for hire are NOT based on the life of the author, it is a flat "95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first."
This is awfully easy stuff -- if he's looked at copyrights he shouldn't be screwing this up.
And extending copyright to ludicrous lengths of time is against the public interest.
I totally agree with this. One hundred percent.
Twenty years after the author's death or the author's hundredth birthday, whichever comes last -- that's a workable standard to provide for the author and his or her immediate heirs.
Sadly, Card is merely reducing an insanely ludicrous length that we have now, to a mere ludicrous length. It's still ludicrous, though.
Copyright isn't intended to provide for authors and especially not to provide for their heirs. Which, incidentally, copyright is very BAD at doing, since few authors make enough money, or for enough time, to ever support themselves or their heirs. Many creative works have no economic value and most have no economic value after a short period of time. Card is making the mistake of thinking that his experiences as a successful author are anything at all other than atypical.
If Card wants authors to make money, he should encourage them to go out and get jobs. If Card wants authors' heirs to be provided for, he should support social welfare systems. What Card cannot do is he cannot force people to buy books, which is the basically the way that an author makes money from his copyrights, and while he wants to make up for that by making terms last for a long time, that still won't make people buy books.
Like it or not, most authors do not make money by dint of being authors. Art is not a lucrative pursuit for the vast majority of artists. Some artists are lucky, but that alone shouldn't dictate our policy.
And let's eliminate this nonsense about corporate authorship.
Here, Card has a reasonable point at least, though I disagree with him. There's a place for works for hire, first of all, and besides which, I see no rational way of preventing the common practice of copyright assignments anyway, which means that there's really no point. An author might not experience this normally, but how many people might be said to be authors of a movie? It's potentially hundreds of people -- ownership by so many is exactly why we don't have certain forms of commons. It just isn't feasible.
If a corporation claims to be the "author" for copyright purposes, then the whole life of the copyright should be twenty years, period.
I think the whole life of a copyright ought to be twenty years period no matter what. Why stop with only works for hire?
Frankly, I think FIVE years is enough, with some types of creative works (read: not software) being eligible for five year extensions up to a maximum of twenty to twenty-five years. Copyrights should be no longer than necessary; if an author can't be bothered to frequently reassert his de
No, it was long decided that commercial speech wasn't entitled to first amendment protections. Then between the 1940's and the 1970's it was more recently decided that commercial speech was entitled to first amendment protections, but that some degree of limitations could be placed upon it, roughly similar to the limits that are placed on noncommercial speech.
Look for the still-applicable Central Hudson case decided by the Supreme Court in 1980 IIRC. It'll get into the details.
"Free Speech" has nothing to do with this issue
How so? If someone on the other end is talking, isn't that speech? And doesn't the first amendment plainly state that there shall be no law abridging the freedom of speech?
It seems to me that based purely on the plain words here, it is free speech. There very well may be a more nuanced argument, but if you want to make such bold claims as you did above, you're going to have to back them up a little bit.
This is one of the great things about the first amendment. It's so damn straightforward that anyone who wants to limit speech has to do some hard work in order to manage it. Sometimes they do manage, but we never want it to be too easy.
Your right to swing your phone ends at annoying me in my own home without my express permission.
So if your house was on fire, I couldn't call you to wake you up and save your life because I lack your express permission?
If we were carpooling and I needed directions on the way, I couldn't call you to find out where you live so that we could both get to work on time because I lack your express permission?
I'm afraid you've got it backwards my friend.
There is implicit permission inherent in having a phone, or a front door, or a mailbox, or an email address, for people to communicate with you of their own accord. You can reject these things by expressly rejecting that permission, but until you act to do so, it's there.
This is not dissimilar to the concept that while it is unlawful to batter someone (meaning roughly to make any unwanted physical contact) it's perfectly fine to jostle people as a consequence of being in a crowded place, because there are situations where the rules change according to what's typical in society.
So I like the general concept of a do-not-call list because it provides a vehicle for such a rejection, though of course such rejections could be made otherwise without it.
But nevertheless, you'd still have to take that affirmative step to rebut what we assume your position is when you haven't made it clear.
On the other hand, regulations as to the appropriate time of calls are acceptable, provided that they aren't so restrictive that they essentially prevent calls from being successfully made. We can to a degree channel speech, but we can't use those channels to kill it.
(IANAL) Even though Congress AND the House GAVE the FTC the authority to do this, how can a District Court Overrule them? WOuldn't it have to come from the Supreme Court?
Well, actually even a backwater state trial court probably could've overturned or stayed the law. If something is unconstitutional, we don't wait years for the highest court in the land to say so. Any court with jurisdiction can so rule. The S.Ct. might have the final word on the subject, but it's the duty of all courts to interpret law -- and among all the laws, the constitution comes first and always trumps everything else should there be a conflict.
Yes, I do understand that he is complaining about First Admendment rights of the telemarketers, but isn't the telphone system regulated by the FCC?
The FCC (and I think you mean FTC) is not allowed to regulate in a manner that is contrary to the first amendment. How could this possibly be otherwise?
Is there no case law on this situation? It appears that the whole "rights" system can be twisted to anyone's favour.
Well, I don't think we can really call rights a mere system. That said, there is case law on the subject. Personally I think it comes out on the side of the government in the case of at least a properly enacted do-not-call list, but I admit that there is room for people to debate the subject, and that we should always tread very cautiously when there is a hint of limiting the broad guarantee of free speech in the first amendment.
Take the heated debate over the displaying of the Ten Commandments (lookup Justice Ray Moore). It was taken down because it offended some people. But, it made other's proud. Why do those who stand for nothing get their way?
So, in the above example, someone's free speech rights *and* religious rights get trounced.
The funny thing is, the government has no guarantee of free speech, and the government is explicitly forbidden by the highest authority from endorsing religion, which the Ten Commandments in the context of the example above certainly did and were intended to do. So no one's free speech rights or right of free exercise were 'trounced' and by removing the statute, numerous people's right to not suffer an establishment of religion was affirmed.
Alright, now we're talking about a telemarketer's right to free speech. Almost ZERO people want to hear from telemarketers and almost nobody cares about the leeching bastards. Yet time after time their "rights" are being upheld. What gives!?
Well, there's little point in protecting speech that everyone does want to hear. If everyone is for it, it'll surely be heard anyway. Speech that is unpopular, on the other hand, is precisely what the first amendment is intended to protect; as so many people will be against it, such speech would surely be silenced otherwise. It's important that we not allow that to happen.
The thing is, I've never once heard RIAA make that claim. I've heard people ascribe it to them, but I haven't heard RIAA make it, and I think that as much as we like to villanize them aside (and as much as they deserve it) they're not quite that dumb. Well, maybe the upper echelons are that dumb because they are the public face of RIAA, not the brains of the operation. (see e.g. MPAA head Valenti's Boston Strangler comment)
As for iTMS, I can't really comment. I haven't seen it. However, the license would appropriately be Apple's. I honestly don't know whether they have people agree to a license that pertains to this. I do seem to recall someone trying to resell iTMS music OTOH, and it being allowed as far as Apple cared.
As for ProCD, I'm aware of it. However, it's not the end-all be-all of cases on this still unsettled subject. Take a look at the Netscape Smart Download case, and the Gateway case in Kansas. (I think it was Kansas)
Basically it comes down to which of two possible sections of the UCC is applied in looking at a transaction as to whether EULAs are valid or not.
However, the RIAA views buying a CD or tape as licencing the right to play the music, not for the actual media the music comes on, and are pressing for making backup copies (allowed under Fair Use) illegal.
No. You seriously do not know what you're talking about.
When you buy shoes, is there a license -- which is a synonym for contract -- is there a contract saying 'go ahead and use these shoes'? NO THERE FUCKING IS NOT.
The law of personal property tells us that owners of a piece of personal property (basically movable things, as distinguished from land, which is real property) have the right to use it as they see fit.
There may be other constraints imposed by law -- you can't drive your car at 150 mph in a school zone -- but this is totally unrelated to the concept of a license, which implies that someone ELSE owns the thing in question and is letting you rent it more or less.
Here's a good rule of thumb: you own something outright if a change in law would result in your being able to do more, but do not own something outright if a change in law would be ineffective in enlarging your legally exercisable abilities since there's a contract that establishes what you can and can't do.
E.g. you own a car, because if the speed limit goes away, you can drive faster legally. OTOH if you have a contract with someone to show their copy of a painting in your gallery, the fact that there is no law regulating the color of the wall it's hung is irrelevant if the contract specifies that it has to be blue.
Copyright law does not include the use of copyrighted works. It includes, basically, copying, modifying, distributing, publicly performing, and publicly displaying, copyrighted works.
Listening privately to a CD is none of those -- ergo, copyright does not prevent you from doing it.
There potentially could be a license, but this is not likely given, say, the Bobbs-Merrill case, and at any rate if there were, you'd bloody well know there was a license. (which again is merely another word for contract)
Contracts are oral or written. If it's oral, someone would've talked to you about what you can and can't do. If it's written, you probably have a copy -- it has the terms printed on it. Even if the contract were not express, but were implied, there still has to be something giving rise to it; but you can buy a CD in a generic transaction without there being ANY contract aside from here's $20, here's the CD I want, ring it up, goodbye.
So get this through your tiny little skull -- THERE IS NO FUCKING CONTRACT FOR CDS, BOOKS, PICTURES, OR ANY DAMN THING ELSE.
With computer software, at least there is an _attempt_ to claim that it's licensed, per an express written contract. And even THAT is subject to challenge as being a damned dirty lie. CDs don't get anywhere near that.
As for fair use, fair use allows everything and nothing. Basically any kind of copyright infringement (backup copies involve copying, an exclusive right of the copyright holder) MIGHT be a fair use. But whether it actually is depends on the precise circumstances involved, when you look at them and conduct the sort of analysis that's provided in 17 USC 107.
YOU CANNOT MAKE BLANKET STATEMENTS ABOUT WHAT IS OR IS NOT FAIR USE -- IT *ALWAYS* DEPENDS ON THE PRECISE CIRCUMSTANCES INVOLVED. NOTHING IS CATEGORICALLY A FAIR USE OR NOT A FAIR USE. IT DEPENDS.
Besides which, if you want to make backups, read 17 USC 1008, BUT, AND THIS IS VERY IMPORTANT, BUT REMEMBER THAT THE TERMINOLOGY USED IN THAT SECTION IS DEFINED IN 17 USC 101, & 1001, AND THAT WHAT IT LOOKS LIKE IT SAYS IS NOT WHAT IT REALLY SAYS IN LIGHT OF THE SPECIAL DEFINITIONS PROVIDED.
So mp3 backups may be a fair use, but they could just as easily not be. Backups of _certain_ CDs to _certain_ CDRs may or may not be a fair use either, but they have a specific sort of exemption that's applicable and which might be more convenient. Though you can't cut corners with 1008 -- you have to do things PRECISELY as the law requires, part of which will mandate that you read all of the applicable law so you'll know what that is.
Intellectual Property law needs to be revisited and some consistency brought to it.
Hell no it does not.
Look, there's honestly no such thing as IP law. It's just a name, but it aggregates a number of diverse bodies of law together under the same roof as it were. Even if they have nothing to do with one another.
For example, the reasons for having copyrights and trademarks are totally different. At the federal level, they're founded in different powers granted to Congress. They behave differently because they're intended to achieve different goals. (and incidentally you don't know what the law is, so your examples given are often backwards)
It would be an amazingly stupid idea to decide that they're all the same basic sorts of things and reform them accordingly. Hell, I don't know how you'd ever work out term limits as an across-the-board standard, but I guarantee whatever you did, it would be bad.
Better to look at copyrights, patents, trademarks, trade secrets, publicity rights, etc. seperately, and reform each one standing alone, where needed.
Well, let's discuss Destination now. I think there are a few problems with the case.
Firstly, the court here never explores the issue of whether the government has a substantial interest in preventing cost shifting, and how much cost shifting it takes to trigger this interest.
Note that it's right of the court to not have explored this issue, because it was conceeded in Destination by the defendant, and courts generally should not make decisions any broader than they need to in order to resolve the case.
Nevertheless, the quote from Bolger (which is binding on the Destination court) certainly indicates that there is a level of harm, perhaps of cost shifting, that the recipient of spam can bear without it being a substantial government interest worthy of regulation under the Central Hudson analysis.
Thus there is certainly the possibility that spam* doesn't cause a sufficient harm to warrant regulation of it.
This is compounded by the statement the court here makes. "The possibility of future technological advances allowing simultaneous transmission and eliminating the need for paper does not alter this conclusion. We look at the problem as it existed when Congress enacted the statute, rather than speculate upon what solutions may turn up in the future."
Well it is the future now, and while we don't have flying cars, we do have spam that doesn't consume paper. The Destination court punted on this question, but it'll have to be answered now.
Secondly, I think the Destination court makes a small error when they say "[t]he First Amendment does not require Congress to forgo addressing the problem at all unless it completely eliminates cost shifting." While that's true enough, the requirement of Central Hudson (detractors of Central Hudson might want to note that Destination is relying on it) is that regulations be effective, though no more expansive than necessary to act upon the government interest asserted.
If a general law against spam is enacted, on the basis of cost shifting, but large volumes of spam continue to be sent from abroad, the regulation rather clearly would not have worked. Again, while it needn't stop all spam, it must stop most spam. If I had to grope for a number, I'd imagine around 75% or more. If it can't do this, it's not a well tailored law since it's not doing what it's meant to.
There's also probably an interesting equal protection argument to be made with regards to the whole spam issue. The court here alludes to it, though defendants waived it, but I'd be interested to know what they said. Given some time to think about it I could probably reconstruct it.
*N.B. that throughout I am only claiming that spam which is not deceptive or fraudulent, and which does not relate to unlawful activities, and which has not been rejected by the recipient in a manner the spammer actually knows of or reasonably should know of, is eligible for protection under the first amendment.
This means that since we have laws against such communications generally ALREADY, only a very small amount of spam remains. That is, general anti-spam laws must be interpreted in terms of their application to spam that isn't already illegal for some reason other than it just being spam. This is because a canon of statutory interpretation is that there are no redundant laws, and if laws might be redundant, they should be interpreted in such a way so that they're not.
I suspect that few people here can honestly claim that they're being significantly harmed by honest spam with spammers who will honor requests to go away. Furthermore, how harmful are such spammers capable of being if you _can_ just tell them to go away and they do.
I'm certainly not defending other spammers.
Well, it took a little bit of googling but here we go.
The post where you and I had been talking, and you provided some cites is likely this one.
My reply to that post (which I believe you mischaracterize as being giberish -- readers are free to decide for themselves of course) is here.
To get your most recent posting out of the way:
as you're an idiot that can't be reasoned with
Well, I don't think so. And I have a surprisingly relevant example given this discussion. About a year ago I was engaged in a similar discussion. My position had been that, bans on spam aside, I would desire regulation requiring headers on advertisements merely denoting them for what they were. (so that I could filter them with less work) Long story short, by the end of the discussion I was convinced that I was probably wrong as far as whether this could withstand scrutiny, or was frankly even desirable (though my loathing of ads has certainly not abated).
So I'm fairly open to good arguments. Problem is that most of the people complaining about spam keep reciting the same old arguments that I've looked at and not been convinced by. A new and superior argument OTOH has every chance of gaining me as an adherent. And I love a good argument, so I'm certainly up for that.
claims he understands the law all the while proving that you understand it even less than I do
I have _an_ understanding of the law. I didn't say that it was invariably correct, though I think I've got this one reasonably well pinned-down. Could be I'm wrong. I've been wrong enough times before, so it wouldn't surprise me. But I want to be shown, not merely told.
(Or pretending to go to law school, as I suspect is your situation.)
Nope. I'm posting from school at the moment. 'Cos I have a godawfully late class on estates that'll keep me here until 9. But this is my last semester, as taking summer classes has gotten me enough credits to get the hell out and take the bar in Feb.
But when I see you post nonsense, I'll continue to point it out, so that you will have more trouble lying to other people.
Well, I'm not lying; I'm calling it as I see it. I may be mistaken, but I have no intention of decieving people. If there's a mistake, it's an honest one.
Now then, perhaps I did you a disservice with regards to the numerous cites that you posted way back in April. So, I will now attempt to address each individually. N.b. that I've got class in half an hour so I might need to post only some now, and get back to the others later tonight.
1. AOL, Rowan, Frisby
I agree with these cases. No one can force someone to accept spam; nevertheless, neither stands for the proposition that spam can be banned generally. Nor do they say that spammers do not have a right to send spam where recipients have not asserted their superior right to not be subjected to it. I have no problem with users or ISPs rejecting spam, though I think that it's not necessarily good for ISPs to be doing it of their own accord, particularly given their desire to be seen as common carriers.
2. Earthlink
The press release isn't helpful. There aren't any details and it's merely for preliminary injunctive relief; it's not a permanent injunction. Couldn't find any further details rapidly with Google or Lexis, so I can't say much about it (other than surprise that people would cite a state trial court).
3. Destination
This looks to require more attention than I have until later tonight; I'll get back to this one though, count on it.
4. Turner
You pointed out that you couldn't find this case. Sporkin is now retired from the bench, but had been serving in the DDC. This figures really, as it's where you'd expect cases against the federal government to get filed.
There was a line of cases between T
Maybe we should start requiring it. It would be not dissimilar to the best edition requirement for deposit, or the best mode requirement for patent disclosures.
Which is equivalent to saying that you're discriminating against a particular type of speech and the method by which it can be disseminated, merely because you don't like the _content_.
Content is a difficult thing to discriminate against in the first amendment arena.
If you don't like email for spam, surely the only position you could take that would be content-neutral is to not like email at all. But I don't think that would work -- or be a good position to adopt -- anyway.
Besides which, email is a very useful medium for speech. I guarantee you it would be unconstitutional for us to decide that all commercial speech has to be written on single grains of rice and shipped to people, since the intent of regulations (such as that, or such as banning spam in favor of junk mail) banning mere pervasiveness is to cause there to be less speech generally. It will chill the advertisements made in spam if they can only be made in more expensive ways. Commercial speech is hardier to chilling than most speech, but it only goes so far.
The problem is that 1) it's extremely paternalistic and intrusive of government to do so, 2) there is a first amendment right to listen which would be harmed by the government so regulating in the case of persons who do not affirmatively ask for ads but nevertheless are ameniable to ads, 3) it still violates spammers first amendment right to send spam to persons who have not affirmatively asked for them but have not affirmatively rejected them either.
The fact that you don't have a problem with it doesn't make it constitutional.
As for me, I hate ads. I'd be happy if I never perceived an ad for the rest of my life save for the rare instance of directly asking for one (e.g. a price quote).
Oh, I'm not a psuedo-lawyer. I'm not any kind of lawyer. I'm a non-lawyer with an interest in the law. I'd very much like to be a lawyer someday. (where someday is basically next spring)
/. only using handles) so if you could perhaps slide over to the thread here perhaps we can all have a lively discussion with cites.
As for your court rulings here, I at least recognize the latter, but it would really help a LOT if you'd cite the damn things. And I'm afraid that I'm really awful with remembering people (which is complicated by
Oh, and incidentally, I don't believe that any of my arguments against certain regulations of spam have ever contradicted the position that people have a right to compel us to "listen to or view any unwanted communication."
This is because no matter how much spam a spammer sends, he has no right to force you to read or receive it. That doesn't mean he can't send it and hope that you volitionally listen to or view it. Heck, maybe you'll even not find it unwanted.
Do you see -- for ONCE -- the difference between sending something, and compelling the receipt of something?
At least the Court did in the text that you quoted: "The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."
Look. I hate advertising regardless of pervasiveness. I'm sitting at a computer in a public lab at school. The monitor has a sticker indicating that it's school property, and a badge indicating the manufacturer of the monitor. I hate both one kilosol. (i.e. with the passion of a thousand burning suns)
Nevertheless, I don't think that the mere fact that there is a LOT of advertising is a sufficient reason to ban it given the first amendment. That you're subjected to advertising is not a recognized harm. Nor is the fact that you're objected to any merely objectionable speech.
If advertising, due MERELY to its pervasiveness, and NOT its content (since you're not arguing that), were rose to the level of harm that can be seen from a threat (E.g. Cross burning illegal where done with the intent to intimidate, not illegal where there is no such intent, intent cannot be presumed merely from the fact of the burning, Virginia v. Black), THEN you might have something going. If someone were harassing you by sending you spam with such an intent, or a volume that's simply ridiculous even for spam, that might be something.
As it stands, spam is merely annoying. It is simply not harmful to you to have to have to 1) put up with it, 2) filter it (which isn't hard and can be done by ISPs upstream even), 3) or simply delete it from your inbox.
I think it is AMAZINGLY disingenious as well as very distasteful to seriously claim that the harm suffered by children as a result of their involvement in child pornography is akin to the harm suffered by you as a result of getting spam. They are in two totally different leagues, man.
Well, I of course never claimed that it was insightful. In fact personally, I find the moderation system and user account requirements rather distasteful. And the prior response to your comment smacks of ebay, which kind of shores up my feelings on that subject, but I digress.
... is so removed from any exposition of ideas, ... and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government," does not lack all protection.
Anyway, the basic problem with your argument is that your chronology is one of greater protection afforded to commercial speech as time goes by. It utterly disproves your position. Indeed, the large quotation at the end which you saw fit to include itself contradicts your position (though it too is flawed) by asserting that there was an increase in protection in 1976.
The Court provides us with a nice history of the pre-1976 state of the law at Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council 425 U.S. 748, 758-61. It points out that while the hoary claim of no protection for commercial speech might have worked in Valentine v. Chrestensen, 316 U.S. 52 (1942), or even as late as Breard v. Alexandria, 341 U.S. 662 (1951), it basically had ceased to function as an absolute claim by the Virginia Pharmacy Bd. case about a quarter-century later.
The core of the Virginia Pharmacy Bd. argument then is at 761-62, stating that "[i]f there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject."
Even "speech which does no more than propose a commercial transaction,
Now, the Court did not go so far as to say that commercial speech was on par with other speech which does receive full protection, but it was at this point making a strong statement that commercial speech did deserve some level of protection under the first amendment. Thus, the trend of increased protection dating back to the 1940's and 50's ("[The assertion made in Breard had] by then come under criticism or was regarded as of doubtful validity by Members of the Court") just kept on increasing.
This means that your claims, muddled as they are given the quoted portion, are already halfway shot down -- you did say that the decisions had gotten worse for commercial speech (which increase in severity with chronology) between Chrestensen and Virginia Pharmacy Bd., but the Court says the exact opposite itself!
Of course, moving on, we get to the well-known Central Hudson case (Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980)). Central Hudson endorses the Virgina Pharmacy Bd. case. It reaffirms that there is a "commonsense distinction" between purely commercial speech and other speech, but nevertheless points out that commercial speech, while subject to greater regulation than other speech, is nevertheless protected to an extent by the first amendment.
What are the limits permitted in Central Hudson and Virginia Pharmacy Bd.?
That the state can impose time/place/manner restrictions on speech. Of course, this is a well-known restriction applicable to all protected speech. Commercial speech is not subjected to any special burden.
That the state can regulate commercial speech that is deceptive. This runs parallel with restrictions on all speech with regard to any fraud, libel or slander. This restriction is roughly equivalent with restrictions on noncommercial speech. This does diverge noticably only in the requirement that additional disclosures, standardized layouts, etc. may be needed to prevent deceptiveness.
That the state can regulate commercial speech related to illegal activity. But this surely is near to, if a little more restrictive than, the limit applied evenhandedly in Brandenburg v. Ohio, 395 U.S. 444 (1969).
The larges
Sigh. Okay, I'm detecting a common mistake in several people's arguments at this point.
If solicitors had a right to come onto private property to solicit, this would mean that they could defend this right against attempts by government to prevent them from doing so. E.g. they could sue the police, if the police came to get them to leave the property, since they had a right to be there.
The mere fact that someone does not have a right to come onto private property to solicit does NOT mean that they do not have the _ability_ to lawfully come onto private property to solicit.
And generally, we make a rebuttable presumption (i.e. we presume unless shown otherwise) that people permit solicitation. So even though it would qualify as trespassing for the Fuller Brush man to go from the sidewalk to your door to try to get you to buy brushes, we assume you permitted him to do so, because our society is generally permissive of communication.
If he tried at an unusual hour, or by sneaking around the back, that probably wouldn't work for him. The implicit permission is fuzzy but nevertheless limited.
And if you want to rebut it, this can be accomplished by providing actual notice to the solicitor to go away, or by providing constructive notice that a reasonable solicitor ought to have become aware of even if a particular solicitor is not (though they likely will be) such as a properly placed sign.
The FTC Do Not Call List is more or less a sign for people's phones, though perhaps it's still susceptable to arguments of government infringement. I think it's probably okay though.
At any rate, the government really cannot bar solicitation generally -- at most in this case they can but back up a property owner's request to not be solicited to. After all, some people might want to be solicited to though they didn't opt in, and at any rate, would you even know to opt in if the solicitor couldn't communicate with you?
Incidentally, your mailbox is private property, but it's of the type with a strong presumption that it's okay to receive more or less anything there. People don't have a right to force others to receive mail, but unless you do something to prevent it, in practice you're going to.
I think the best that can be hoped for is for government to provide a cause of action against:
* Spam that's fraudulent in some way (e.g. false claims within, false header, false return address for opt out, doesn't actually opt out, etc.)
* Spam sent despite an actual or constructive opt out
* Spam that constitutes harassment (e.g. hundreds of roughly identical spams from the same source)
Which ought to cover a lot, though there is a problem of spam originating outside the US and unrelated to the US in any way other than that that's where the recipient lives.
But I don't see a reason for government to ban spam that is entirely truthful, that isn't sent so much as to harass (small amounts are not harassing -- annoying, but not harassing), and where the spammer respects people's opting out. At least, not given that private people could cope with _that_ sort of spam easily on their own _by_ opting out. Plus it's just not that common at the moment.
I believe you misread what I was saying. I never said spammers had a right to use your property to speak on. OTOH that doesn't mean that spammers don't have a right to speak, nor that they can be prevented by the government sua sponte from using your property to speak on.
Do you see how these things differ?
Mmm... I don't know if that goes against the assumption -- I think that you just ran into someone who was ignoring your wishes and ought to be subject to liabilities for it if you were to pursue it. I wouldn't object to it; they were told, or knew they were being told, which is sufficient.
I don't think that pervasiveness is relevant. Perhaps you could make an argument against a particular spammer for harassment (though spam is still pretty easy to delete or filter compared to real world equivalents) but that's not an argument against all spammers, some of whom may not engage in such behavior generally or against a particular person.
As for the benefits of spam, there are some, and at any rate, since when did speech have to be beneficial in order to be protected? People are free to rail about utter crap all the time -- but it's good that we let them.
the only law that really counts IMHO (the Constitution) provides protection for free speech, not commercial speech
Well, there is of course a California constitution. I'm not very familiar with the constitutional law of California, but it's certainly possible that Art. I, Sec. 2 might be applicable -- mere unsolicited email may not mean abuse.
As for the somewhat more important federal constitution, it affords protection to very nearly all speech. Obscenity, fraud, libel, and slander are the traditional areas of exclusion.
Commercial speech is protected. Where it differs from non-commercial speech ('free speech' isn't really a useful thing to say in this context) is that it's generally accepted to require additional disclosures to be made, whereas most people are protected from having to assert a belief. (See e.g. Barnette)
But the line of cases involving commercial speech makes VERY plain that it is protected speech, and these days is very nearly protected as much as non-commercial speech.
Of course, ANY speech may potentially be regulated sans an amendment to the constitution. There are various analyses that go into whether or not it's permissible in a given case. See, e.g. Brandenburg, New York Times, Black, O'Brien, etc.
And of course, even the vaunted FTC is limited as to how far it can regulate commercial speech -- it only enjoys as much power as Congress could give it. What Congress is forbidden to do, the FTC is forbidden to do as well.
Commerical endeavors have always suffered more restrictions than non-commercial ones.
Yeah, but this has been significantly eroding for several decades. At this point there are very few restrictions unique to commercial speech.
Witness the anti-telemarketing Do Not Call registries that apply to commercial interests but not non-profits or politicians.
I suspect that that application has nothing to do with the issue of commercial speech per se. The list is promulgated by the FTC. They're not empowered to regulate persons not engaged in trade.
I mention this simply because spammers will say they have a first amendment right to annoy you because a form of 'speech' is involved, which is bullshit, kinda like how I don't have a first amendment right to stand on your lawn yelling advertisements with a loudspeaker 24/7, even though speech is involved. The first amendment doesn't mean anything is legal so long as some form of speech is in the mix. Spam is illegitimate, unprotected speech--much like kiddie porn and threats of violence.
Yeah, the problem is that this particular law goes too far and does in fact run afoul of the first amendment.
Spammers do not have a right to spam despite the wishes of the recipient, that's true. But where the recipient of any commercial solicitation at the home (by email, phone, door-to-door, etc) hasn't expressed a preference, we generally assume that it is permitted. If the recipient doesn't want it he can appraise the solicitor of that fact directly, or through a sort of preemptive notice (e.g. by putting up a sign).
This law violates a) spammers' right to free speech where the recipient hasn't expressed a desire to not get spam, and b) recipients' right to receive unsolicited spam if they desire to do so.
The latter I think is extremely important; imagine if such a ban were placed on political speech. You couldn't tell someone your political views unless they invited you to, and you might have difficulty even relating that you wanted to discuss politics with them if they hadn't given you permission yet. Listeners would be harmed by not receiving as much information as was available up to at least the limit they're willint to listen to it, AND likely not even knowing it's out there for them.
Hopefully this law will be overturned.
I think there are better ways to deal with spam than this.
You are missing his point, since its clear you have never dealt with book publishers in the last 20 years.
Actually, I have, but not as an author.
101 of the 1976 Copyright Act defines WfH, and the european equivalent was made to match the US, despite no mention of Work-for-Hire in the Berne Convention. WfH was left out of Berne, because all authors thought it a bad idea, and addressed under the section on Moral Rights. Berne did not go far enough and specifically state that WfH should be outlawed in national copyright laws, because the US had already had it for almost 70 years.
First off, I hate the Berne Convention. I think copyright laws are best when they best serve the purposes of the nation that enacts them. Harmonization is bullshit -- it doesn't serve the public in any way whatsoever, and I frankly do not believe that it provides an incentive to authors that could possibly make up for the awful harms it causes. I completely believe that the US should pull itself out of all international copyright treaties, and just do what is best for us. The Senate had the right idea during the roughly hundred years that it refused to tolerate the Berne Convention. It was a huge mistake to agree to it.
Secondly, I don't really care what authors think is a good idea. I care about what best serves the public interest. These may or may not be in harmony with one another.
I really don't have a problem with employee works within the scope of employment being works for hire. Just the other day I was involved in a discussion of patent law, and I proposed that (this was in a discussion of the best mode requirement) employers should be considered to be inventors for inventions created by their employees in the scope of their employment.
Given the common practice of requiring employees and contractors to assign their rights anyway, it would merely make things clearer, and in that context at least, fix up the issue of disclosure of the best mode known to the inventor.
If we did not have works for hire, may I ask you whether a) you think assignments wouldn't still exist and more or less end with the same result, and b) what you would classify something like a movie as, given the number of people who helped author it? A joint work with hundreds of co-authors? That's impractical for the same reason that we don't have commons.
As for moral rights, they're bullshit. There's no public purpose that's served by them, and there are numerous public harms. We need to get rid of 106A, and then make sure that such non-utilitarian doctrines never darken our shores again.
Most large publishers require authors to sign an agreement declaring their work was really done as a Hired Work, and forfeit all associated rights. Don't want to sign their contract? Then go find a different publisher.
Mm. Well, I would imagine that the contract actually does two things, though I'd appreciate it if you could post the relevant language so we can all have a look.
First, it probably makes the claim that it's a work for hire under the two definitions in 17 USC 101. But because this is not amazingly difficult to challenge in court -- since a mere claim of employment doesn't necessarily make it so, and courts will look at the actual circumstances -- there is secondly probably an assignment clause as well, to cover the publisher's ass.
Anyway, what's the problem with this? It would be a bad idea to compel publishers to do business with authors on terms that were not mutually agreed upon. Same goes for most business relationships: employees frequently have to sign non-competes, non-disclosures, assignments, etc.
If you don't like it, I encourage you to start up your own publishing house, to self-publish, or to go to a vanity press.
I just don't see the problem.
I've written a couple of books, the last has not (yet) been published because I spent several years of my time putting all my creativity and ideas into it and I refuse to g